People v. Norman

CRAIG, J.

The defendants were convicted of operating an automobile upon the public highways without the own

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er’s consent, a felony. The court denied their motion for a new trial and pronounced judgment, from which this appeal was taken. The ground urged for reversal is that the defendants were not legally committed by a magistrate.

The proceedings upon which they rely are as follows: The prosecution was begun in the usual manner and after a preliminary examination before a magistrate the defendants were held to answer for “driving an automobile without the owner’s consent. ’ ’ An information was filed by the district attorney charging the defendants with a felony, to wit, operating an automobile upon the public highways without the owner’s consent. Defendants were arraigned in the superior court and moved to set aside the information on the ground that they were not legally committed by a magistrate. The court denied the motion, expressing an opinion that the magistrate should amend the commitment and thereafter made an order directing the clerk to transmit the papers in the case to the committing magistrate, and that the justice be directed to correct the commitment and recertify it to the superior court.

Thereupon the committing magistrate signed a new commitment, holding the defendants to answer for operating an automobile upon the public highways without the owner’s consent. In due time the defendants were again arraigned and moved to set the information aside upon the same grounds as before. This motion was denied. A plea of not guilty was entered and, after a trial, the defendants were convicted.

It is urged that under the first commitment the defendants were held to answer for a misdemeanor. Our attention is called to section 499b of the Penal Code, which makes it a misdemeanor for a person “without the permission of the owner” to “take any automobile . . . for the purpose of temporarily using or operating the same.” Section 28 of the motor vehicle law (Stats. 1915, p. 397), as amended in 1917 by section 21 thereof, provides that “it shall be unlawful for any person to drive or1 operate . . . upon public highways any motor vehicle not his own, whether with or without intent to steal the same, in the absence of the owner thereof and without such owner’s consent,” and makes a violation of this provision a felony. Appellant argues that since the words “public highways” were omitted